Excerpt: - code of civil procedure, 1908. order 37, rule 3(5) :[arali nagaraj, j] leave to defend - plaiantiff company seeking recovery of amount due from defendants - defendants had supplied goods to plaintiff which were not found to be of standard quality - defenadnts raised triable issue suit which require full-fledged trial however, defence raised by them in respect of admitted part of claim of plaintiff besides being sham and illusory was not supported by specific facts - held, therefore defendants though entitled to unconditional leave to defend, same is restricted to disputed portion. - such an alienation must therefore fail, and the adopted son is entitled to get the property......it is, whether the alienation made by the sole surviving coparcener while there was a widow in the joint family capable of inducting a child by adoption into the joint family, is binding on the subsequently adopted son by the widow, if the alienation is not made for a purpose binding on the estate of the joint family.(2) the facts leading to this appeal may shortly be stated as follows one siddappa had two sons, mallappa and channaveerappa: channaveerappa pre-deceased mallappa leaving behind him his wife mallawa, mallappa had a son by name channabasappa who was given in adoption to one siddappa bajigoundar in the year 1914. in the year 1926 mallappa made a gift of the property in dispute in favour of channabasapa. however, the property which was gifted to channabasappa was given to.....

Judgment:

(1) This is a defendant's appeal and the question of law involved in it is, whether the alienation made by the sole surviving coparcener while there was a widow in the joint family capable of inducting a child by adoption into the joint family, is binding on the subsequently adopted son by the widow, if the alienation is not made for a purpose binding on the estate of the joint family.

(2) The facts leading to this appeal may shortly be stated as follows One Siddappa had two sons, Mallappa and Channaveerappa: Channaveerappa pre-deceased Mallappa leaving behind him his wife Mallawa, Mallappa had a son by name Channabasappa who was given in adoption to one Siddappa Bajigoundar in the year 1914. In the year 1926 Mallappa made a gift of the property in dispute in favour of Channabasapa. However, the property which was gifted to Channabasappa was given to Mallawa, the widow of Channaveerappa for her maintenance. Mallawa adopted the defendant on 8th December 1945 to her husband Channaveerappa: she died in February 1953 and the present suit has been filed by the plaintiff, i.e. Channabasappa who was given in adoption to Siddappa Bajigoundar, claiming possession of the property in the possession of Mallawa and after her death, in the possession of defendant No.1, on the strength of the gift deed of the year 1926.

(3) Defendant No.1 who was subsequently adopted by Channaveerappa's widow, contested the plaintiff's claim to recover possession of the suit property. He inter alia contended that the alienation made by Mallappa by way of gift is not binding on him, since the same is not made for a purpose binding on the estate of the joint family and therefore the plaintiff cannot claim possession of the suit property on the strength of the said gift deed.

(4)There were other contentions raised by the defendant to the plaintiff's suit. But those contentions are not relevant for the purpose of deciding the question raised in this appeal. Defendant's adoption was held proved. Therefore the only question that is urged in this appeal. Defendant 's adoption was held proved. Therefore the only question that is urged in this appeal is, whether the alienation made under the gift deed executed by Mallappa in favour of Channabasappa, his natural son, in the year 1926 is binding on the defendant No. 1 the subsequently adopted son of Channaveerappa.

(5) Both the Courts below have held that plaintiff is entitled to succeed since the alienation made by Mallappa was valid, the same having been made by him while he was the sole surviving coparcener of the joint family and such an alienation made by the sole surviving coparcener cannot be challenged by the subsequently adopted son by a widow--in the joint family. It is the correctness of this proposition of law that is being challenged by Mr. Datar, appearing for the appellant the adopted son.

(6) It is argued that in the year 1926 when Mallappa made a gift of the suit property in favour of his natural son Channabasappa, the defendant who was adopted on 8th December 1945 by Mallawa to Channaveerappa must be held to be in existence in the year 1926 by virtue of the rule that an adoption relates back to the date of the death of his adoptive father Channaveerappa. There is no dispute that Channaveerappa pre-deceased Mallappa, leaving behind him his widow Mallawa who subsequently adopted defendant to her husband. Therefore, the position of Mallappa in the joint family was that of a Manager in the joint family and any alienation made by him unless it is made for a purpose binding on the subsequently adopted son. Such an alienation must therefore fail, and the adopted son is entitled to get the property.

(7) Mr. H.F.M. Reddy, appearing for the respondent-plaintiff contends that Mallappa made a gift in favour of his natural son Channabasappa, while he was the sole surviving coparcener, and the mere existence of Mallawa, the widow of a pre-deceased brother Channaveerappa in the joint family, at the time the alienation was made would not affect his right to deal with the joint family property as the sole surviving coparcener; and if the alienation made by Mallappa was lawful when it was made, then it cannot be challenged by the subsequently adopted son who would not be entitled to claim back the property which had gone out of the joint family by such alienation. In support of this proposition, the learned counsel relied on two decisions reported in Bhimaji Krishnarao v. Hanmantrao Vinayak, : AIR1950Bom271 and Vithalbhai Gokalbhai v. Shivabhai Dhoribhai, : AIR1950Bom289 .

It may be stated that the decision in both the cases is to the effect that an adopted son cannot question the alienation or disposition of the family property lawfully made prior to his adoption by persons who were then competent to make them. But the supreme Court has now made the position of law clear in a recent decision reported in Guramma Bhratar v. Mallappa Chanbasappa : [1964]4SCR497 . From the facts of the case as they appear from the judgment, one Channabasappa was a sole surviving coparcener; he had three wives Nagamma, Guramma and Venkamma and two widowed daughters. Sivalingamma and Neelamma, children of his pre-deceased wife, he died on 8th January 1944 and, at the time of his death, Venkamma, his third wife was pregnant. She gave birth to a male child on 4th October 1944. The first widow Nagamma made an adoption on 30th January 1944, i.e., soon after her husband's death but before his death made several alienations, but the alienations made on the 4th and 5th of January 1944 were challenged by Nagamma, claiming her share after setting aside those alienations; and one of the questions that arose for decision in the appeal was, whether the alienations made by Channabasappa before his death as the sole surviving coparcener are binding on the natural born son or a son who has been inducted in the family by adoption. It was in such circumstances their Lordships stated in paragraph 13 of the judgment as follows:

'Before we advert to the legal aspects of the argument, it may be stated at once that no question of consent of the 4th defendant can possibly arise in this case, as he was not born when the alienations were made and he was minor at the time the suit was filed. We must, therefore, proceed on the basis that the alienations were made by one of the members of the joint family without the consent of the other members of the family. If so, at the time the alienations were made Channabassappa had not the absolute power to alienate the family property, whether he is natural born or adopted into the family, acquires an interest by birth or adoption, as the case may be, in the ancestral property of the family. A managing member of the family has power to alienate for value joint family property either for family necessity or for the benefit of the estate. An alienation can also be made by a managing member with the consent of all the coparceners of the family. The sole surviving member of a coparcenary has an absolute powers to alienate the family property, as at the time of alienation there is no other member who has joint interest in the family. If another member was in existence or in the womb of his mother at the time of the alienation the power of the manager was circumscribed as aforesaid and his alienation would be voidable at the instance of the existing member or the member who was in the womb but was subsequently born, as the case may be, unless it was made for purposes binding on the members of the family or the existing member consented to it or the subsequently born member ratified it after he attained majority. If another member was conceived in the family or inducted therein by adoption before such consent or ratification, his right to avoid the alienation will not be affected. In the instant case the impugned alienations were made at a time when the 4th defendant was in the womb, ie., at a time when Channabassappa had only a limited right of disposal over the joint family property. The 4th defendant being in the womb, he could not obviously give his consent, nor ratify the alienations before the adoption of the third defendant took place and he was inducted in the family. If the alienations were made by the father for a purpose not binding on the estate, they would be voidable at the instance of the 3rd or 4 the defendant.'

(8)Thus, it would appear from these observations, that the power of the sole surviving coparcener, to deal with the joint family property is circumscribed, but the existence of certain facts, such as, the existence of a member in the joint family who has the joint interest in the family, and in such circumstances, any alienation made by the sole surviving coparcener unless it is made for a purpose binding on the estate, is liable to be avoided by the subsequently born or adopted son. Mr. Reddy contends that their Lordships have also observed that the sole surviving member of a coparcener has an absolute power to alienate the family property; thus in the circumstances of a case as in the present one, it must be held that the power of the sole surviving coparcener is that of a Manager in the joint family and any alienation made by him, unless it is made for a purpose binding on the estate, is not binding on the subsequently born or adopted son and h is entitled to claim back the property by virtue of his birth or adoption. In the instant case, the alienation made is not proved to be for the family necessity or for the benefit of the estate. That being so the view taken by both the Courts below cannot be sustained and the same is set aside.

(9) Before concluding, I may state that Mr. Reddy during the course of his arguments asked me to refer this case for decision to a Bench of two Judges, since it involves an important question of law. But, since the said question is covered by the aforesaid decision of their Lordships of the Supreme Court and also the decision of this Court reported in Nandappa Paramanna v. Shiddgouda Ningappa, 1964(2) Mys LJ 108(AIR 1964 Mys 217), I am unable to accede to the request made by Mr. Reddy, for the respondent.

(10) In the result, this appeal is allowed, the decree made by the appellate Court confirming that of the trial Court is set aside and the plaintiff's suit is dismissed with costs throughout.